Tuesday, 18 October 2016

Yesterday Australia's human right commissioners- both for Australia and all the States and Territories called for equal marriage laws.

The commissioners, who comprise the Australian Council of Human Rights Authorities, said:

"ACHRA members reaffirm their support for
marriage equality based on the fundamental human rights principles of equality
before the law and non-discrimination. Members call on political leaders to
work towards a resolution of this issue in a way that respects the rights and
freedoms of all Australians.ACHRA reminds
leaders and the community that prejudice and vilification in relation to
sexuality and gender identity is harmful to individuals and society. In this
regard, public debate must comply with existing discrimination protections in
Federal, State & Territory laws. Those laws provide an appropriate balance
of the rights to freedom of expression and belief, equality, and freedom from
discrimination."

Monday, 17 October 2016

What was surprising was not that the ALP in effect killed off the plebiscite, but that the ALP caucus, which was always geared to have a conscience vote on gay marriage, at least until 2019, voted unanimously against the plebiscite.

This gives a strong message. The ALP is headed in one direction- no plebiscite, but a free vote.

While we have not yet had the vote in the Senate yet, the outcome is certain. Politics is after all a numbers game, and the numbers are against the Government in the Senate.

It is extraordinary that due to the opposition of Tony Abbott, some conservative Liberals like Cory Bernardi and Eric Abetz, and the Nationals that we are now in this mess- where increasingly the public just want the Government to solve the porblem, and the longer it goes on, the weaker the Government looks. No matter that the Prime Minister will feel that he cannot move- because to do otherwise will lead to his downfall.

The Prime Minister is clear: anytime soon no plebiscite, no change. Or at least, that is what some backbenchers and some Nationals members have said. There has even been talk that if the Government drops the plebiscite idea, and seeks a free vote it will be a breach of the coalition agreement.

In the midst of all of this, the man charged with getting the change through, Attorney-General George Brandis, was dragged into a Senate inquiry on Friday, following public differences between him and Solicitor-General Justin Gleeson. This is a major fight. Academics have weighed in, as has famed former Solicitor- General, who seemed to win every High Court case on behalf of the Commonwealth in his term, Dr Gavan Griffiths.

As of this morning, there were media reports that the plan was to move George Brandis sideways, either to replace Alexander Downer as Australian High Commissioner in London (who was opposed to THAT move) , or to fill the next High Court vacancy. But Brandis is going nowhere- at least for now.

Be that as it may, it is a huge distraction for Brandis to somehow craft a deal to get same sex marriage through, or to persuade others to accept his views, when on top of his onerous duties he also has the stoush with the Senate and the Solicitor-General.

A side distraction for the Government (if there weren't enough already) has been the immediate resignation of Family First's Senator Bob Day (SA), following the collapse of his Huxley Homes. The resignation will trigger the likely appointment of another Family First Senator from South Australia. Who it will be is not known, but it is extremely unlikely that their view will be anything but opposed to same sex marriage.

So we shall probably have to wait- and wait some more, until we eventually, in the words of Michael Kirby, muddle through and then enact equal marriage.

Sunday, 9 October 2016

It is now one year and one day since I married my husband in Las Vegas.
Our marriage was celebrated before God, according to law, in front of 10
friends in person, and 250 friends and family in several countries via
streaming. Our marriage, and the marriages of many other couples, is not
recognised in our homeland, although it is recognised in countries with
which we show a close affinity, heritage and values: the UK, Ireland,
Canada, US and New Zealand, as well as many other countries including
Brazil, Argentina, Colombia, South Africa, and many European countries.

The cause of our angst

In 1961 then Attorney-General in a coalition government, and later Chief Justice Sir Garfield Barwick pushed the Marriage Bill, through Parliament. At the time it was considered revolutionary. Despite vehement Church opposition to the Marriage Bill, no one came up with the idea that Parliament should abrogate its job and have a plebiscite.

In 1975, when under Attorney-General Lionel Murphy, the Marriage Act was amended to allow civil celebrants, no one, despite vehement Church opposition, suggested that Parliament should abrogate its job and have a plebiscite. Now about 80% of marriages are celebrated by celebrants, not ordained Ministers.

In 2004, John Howard with Labor support caused amendments to be made to the Marriage Act 1961 to prevent same sex marriage. Again, no one suggested that there should be a plebiscite. One could imagine that John Howard would have vigorously opposed such a step.

While I considered (and still do) that this was a retrograde step, I have never opposed the ability of Parliament to legislate for the common good.

But it is this legislation that is the reason the Marriage Act needs to be amended. For several years, various MP's and Senators have come up with quick and simple legislative fixes to fix the Marriage Act and remove the discrimination. This was solidly opposed by the coalition, and earlier by Labor.

Last year came the fix from the right of the Liberal Party, and spurred on by the Nationals, Tony Abbott embraced the plebiscite as a way of allowing open debate about same sex marriage- but as a means ultimately of defeating it.

As a seeming price of his becoming PM, Malcolm Turnbull, who rightly opposed the idea of the plebiscite, has embraced it, took it to the general election, and by a majority of one, won the election.

And now we have a proposed plebiscite that:

is unnecessary

devalues the role of Parliament, and through it our representative democracy, which despite its faults has meant that Australia is one of the oldest democracies in the world, and which by its openness has meant that we are prosperous and stable. Our respect for our democratic institutions, including that of Parliament, are fundamental to that.

seeks to have the majority decide whether or not a minority have rights- and not just any rights- but the right to one of the most fundamental things- the right to form a relationship- to marry, rather than Parliament recognising those rights

sets a precedent that when things get too hard, will cause MP's to throw it to a plebiscite rather than doing their jobs, the jobs we as taxpayers pay them to do.

is a fundamental waste of money- at last count $200 million. Of all the ways that Government can waste money, this is a pretty extreme way, when according to pollsters, every electorate in the country, except one, the outback Queensland seat of Maranoa, is in favour of same sex marriage. Even Bob Katter's outback seat of Kennedy is in favour.

While I remain deeply saddened that marriage equality has not come, and will not come soon, the more I think about the plebiscite, the more I am opposed to the idea.

As a nation, we can do better.

Here is the public statement that I support:

As organisations and leaders of the lesbian, gay, bisexual,
transgender and intersex (LGBTI) communities, we call on the Australian
Parliament to ensure that every Australian is able to marry the person
they love, in the country they cherish.
Making a solemn commitment to build a secure future with your
partner, in front of your family and friends, is something that should
be publicly celebrated. Declaring your commitment to look after your
partner in sickness and health both cements your relationship through
the rough times and shares your joys in the good times.
We make this call not only on behalf of LGBTI communities and their
families who have been waiting for over a decade, but importantly to
ensure future generations of LGBTI Australians can grow up on equal
footing with their peers.
Two thirds of the Australian people, a majority of both houses of
parliament and leaders of all major parties support marriage equality.
We have never had so much support for achieving this small step towards
every Australian having the same opportunities as their neighbour.
Our shared goal is simple – we want marriage equality as soon as
possible at the lowest cost. The most efficient and effective way of
achieving marriage equality is a vote in Parliament, a power confirmed
by the High Court in 2013.
Marriage equality is about people, not politics. It is about the
grandma who wants to see her granddaughter married in her lifetime, the
parents who want to walk their children down the aisle, the children who
wish to see their parents marry, and the many ageing couples who have
endured inequality throughout their lives.
Our relationships, future happiness and security should not be used for political point-scoring.
We call on our political leaders to put aside partisanship and come
together to find an achievable pathway for marriage equality, this term.
The Government proposes a plebiscite which we believe is unnecessary,
costly and divisive, when the law can be changed through a
straightforward vote in parliament. No Australian should have to witness
a national debate on their worth or the value of their relationship. We
are particularly concerned about the psychological impact on our
communities caused by repeated exposure to divisive national discourse –
concerns that are based on research evidence.
Our expectation has always been that should a plebiscite proceed,
parliament would ensure a fair and reasonable plebiscite process that
recognises the impact of this national conversation. Unfortunately, the
plebiscite machinery legislation now presented by the government is
neither. Indeed it is unfair, unjust and unworkable:

No government amendments to the Marriage Act have been provided as
yet, nor are they guaranteed to come into effect following a successful
Yes vote. It is unreasonable to expect the community and the parliament
to vote on a plebiscite without first seeing the detail of what will be
enacted upon a successful vote.

It is unacceptable to use $15 million of tax-payer dollars to fund
the YES and NO committees, adding to the already extraordinary cost of
the plebiscite. The proposal requires no truth-in-advertising test, yet
will be seen as being endorsed by the Australian Government.

The Government’s bill will create an uneven playing field. Religious
organisations already enjoy a range of tax benefits and concessions
denied to other entities. Few LGBTI organisation have comparable tax
deductibility status. Limiting tax-deductible donations to $1500 for
individuals will exacerbate this unfairness.

The question is unnecessarily complex and the wording ‘same-sex’
fails to be fully inclusive of all LGBTI relationships. Media reports
that the question has been crafted to improve the chances of a ‘no’ vote
are troubling.

The plebiscite package provides no strategies or funding to address
the considerable concern about the impact of the plebiscite on LGBTI
communities, our families and friends. We have already seen reports of
LGBTI Australians distressed.

Given this, we call on parliament to vote down the plebiscite machinery legislation.
Additionally, we reinforce our call that these reforms should not be
delayed due to the politicking of parties in Canberra. We call on all
Members of Parliament of good conscience to work together to deliver
marriage equality this term.

When Parliament resumes on Tuesday, there will be high drama in Canberra about the plebiscite bill.

The Government has signalled that it will present the plebiscite enabling bill for a second reading in the House of Representatives on Tuesday. The Labor caucus does not meet until Tuesday, but subject to a vote in effect of no confidence in Bill Shorten's leadership, the ALP will take a firm position against the plebiscite. It is likely at that time that the plebiscite will be doomed.

Once the Bill is debated upon, it is highly likely that the Government will apply the guillotine to cut debate short, so that the bill can get through the Representatives and go to the Senate. The Government has the numbers in the Representatives for the bill to pass there.

The Bill is scheduled to be before the Senate on Wednesday. There it is unlikely that there will be any swift passage of the bill. It will be interesting to see what happens in the Senate, but the most likely outcome is that there will be several weeks before the bill is killed off. The mess will then be in the Government's hands as to what to do. The Government could seek to amend the bill to placate Senators- but that is unlikely to work. Or the Government could wait the required time (3 months) and then use the bill as a trigger for another double dissolution of the House of Representatives and the Senate if its rejected by the Senate a second time. One could hardly imagine a more unpopular way of calling an election. Or the Government could allow a free vote- but that's unlikely while the plebiscite and the PM's Leadership are in lockstep. Or the Government could say that it puts everything off until after the next election. That seems the most likely course.

So what is the Senate likely to do?

The numbers are against the Government- if the ALP does come out on Tuesday and say it is opposed to the plebiscite. Currently in the Senate, one Government Senator, Dean Smith, who is openly gay, will vote against the plebiscite bill. Pauline Hanson's four senators will vote in favour. Derryn Hinch and Nick Xenophon's three members, the Green and Labor will vote against. In short, subject to the PM and Attorney-General George Brandis pulling a rabbit out of the hat- it appears as dead as a dodo.

Oh and don't forget the most improbable scenario. Senator Eric Abetz, one of of the architects of the plebiscite proposal- as a means of defeating equal marriage- said at one stage that he intended for there to be a Senate inquiry- as a means of slowing the Bill down. Of course, to get his inquiry up and running, Senator Abetz needs a majority in the Senate- and that looks unlikely at this point, to say the least.

For all their talk of the psychological impact on young LGBTI people in particular from the plebiscite campaign, one could not imagine Nick Xenophon, the Greens, Derryn Hinch or Labor supporting an inquiry.

Last week I was lucky to take part in meetings of LGBTI community members with both George Brandis and his Labor counterpart Mark Dreyfus. Both sides seem locked in their positions with little movement. No surprises there.

2016 winner of a Queensland Law Society Equity and Diversity Award: The Australian Gay and Lesbian Law Blog: " (a)strong and pioneering commitment to the rights of and interests of LGBTI people in Australia" Queensland Law Society May, 2016

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.